Bradford v. Team Pizza, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION Michael Bradford, ) ) Plaintiff, ) Case No. 1:20-cv-00060 ) vs. ) Judge Michael R. Barrett ) Team Pizza, Inc., et al., ) ) Defendants. ) ) ) ORDER This matter is before the Court on the Magistrate Judge’s June 29, 2020 Report and Recommendation (“R&R”) that Plaintiff’s Motion to Conditionally Certify a Fair Labor Standards Act (“FLSA”) Collective Action and to Authorize Notice (Doc. 5) be granted in part and denied in part. (Doc. 20). Plaintiff filed timely objections (Doc. 22) and Defendant Team Pizza, Inc. and Defendant Chris Short (collectively “Defendants”) filed a timely response to Plaintiff’s objections (Doc. 23).

The Magistrate Judge completed a comprehensive review of the procedural background and pertinent facts of the case thus far and provided the legal framework for Plaintiff’s Motion in the R&R. The same will not be repeated herein unless necessary to address Plaintiff’s objections.

I. STANDARD OF REVIEW Plaintiff suggests that the Magistrate Judge’s R&R regarding his Motion to Conditionally Certify a FLSA Collective Action and to Authorize Notice is dispositive, and that the Court should therefore conduct a de novo review of the R&R.1 (Doc. 22 PageID 252). However, “[a] motion for conditional certification under the FLSA is a nondispositive matter.” Rutledge v. Claypool Elec., Inc., No. 2:12CV0159, 2013 WL 435058, at *2 (S.D. Ohio Feb. 3, 2013). When the Court receives timely objections to a magistrate judge’s R&R on a nondispositive matter, “the district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.” FED. R. CIV. P. 72(a); 28 U.S.C. § 636(b)(1)(A).

The “clearly erroneous” standard applies to the magistrate judge's factual findings and the “contrary to law” standard applies to the legal conclusions. Sheppard v. Warden, Chillicothe Corr., Inst., 1:12-CV-198, 2013 WL 146364, *5 (S.D. Ohio Jan. 14, 2013). A factual finding is clearly erroneous when, “although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.” Id. (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). Legal conclusions should be modified or set aside if they “contradict or ignore applicable precepts of law, as found in the Constitution, statutes, or case precedent.” Id. (quoting Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992)).

II. ANALYSIS As an initial matter, no party objects to the Magistrate Judge’s R&R regarding: the finding that conditional certification is not entirely precluded; declining to consider any arbitration agreements between potential opt-in2 plaintiffs and Defendants at this juncture;

Starting with Plaintiff’s reliance on his Complaint and Declaration, he argues that those documents provide “robust allegations” that he is similarly situated to all of other delivery drivers employed by Defendants nationwide. (Id. PageID 242). Plaintiff, though, does not direct the Court to any specific allegation, or allegations, in his Complaint and only asserts that the allegations in the Complaint are relevant. (Id. PageID 243 n.3). The Court does not disagree, but is not convinced that the allegations in his Complaint, alone, are sufficient to properly grant conditional certification of a nationwide class.

Plaintiff next contends that his “declaration alone establishes that [he] was similarly situated to other delivery drivers because they were all subject to the same or similar automobile expense reimbursement policies.” (Id. PageID 243). He, again, fails to cite to a specific allegation, or allegations, in his declaration that supports this statement. Id. A review of his declaration as a whole does not reveal that he has actual knowledge about any other, or all, of Defendants’ stores outside of the location where he worked and spoke with his co-workers and manager. (Doc. 5-1) (Michael Bradford Decl.). While it is true that “[a] court can conditionally certify a collective action under the FLSA on the strength of a single affidavit or declaration,” that document must still “set[] forth sufficient facts from which the court may reasonably infer the existence of other employees who were subject to the same wage and work hours policy as plaintiff.” Cook v. Brewster, No. 5:20-CV-0445, 2020 WL 5891904, at *5 (N.D. Ohio Oct. 5, 2020). And. “declarations that meet this standard typically contain first-hand observations of employees at other locations, or other relevant evidence, showing a unified policy that applied to all employees.” Id. (collecting cases). The Court agrees with the Magistrate Judge that Plaintiff’s declaration does not establish that he has any knowledge of Defendants’ other locations’ pay structures or policies, or that an across-the-board pay structure exists for all of Defendants’ locations. (Doc. 22 PageID 206- 07).

Turning to Plaintiff’s contention that Defendants admitted that all of their “delivery drivers are similarly situated for the purposes of automobile expense reimbursement,” (Doc. 22 PageID 243) (citing (Doc. 12 ¶ 63)), the Court disagrees with Plaintiff’s characterization of that paragraph of Defendants’ Answer for purposes of conditional certification, see (Doc. 12 ¶ 63). Likewise, Plaintiff’s reliance on the similarity of his case, and single declaration, to that of the plaintiff’s case, and single declaration, in Thomas, 2019 WL 4743637, is misplaced. The corporate structure of the Defendants in this matter is different than that of the defendants in Thomas which involves franchisee defendants and a franchisor defendant. In Thomas, nearly two years had passed before the Court ruled on the plaintiff’s motion to conditionally certify an FLSA collective action, as the Court had to first rule on the defendants’ motions to dismiss; the information the Court obtained in reviewing the motions to dismiss necessarily supplemented the single declaration presented with the plaintiff’s motion to conditionally certify an FLSA collective action.

Additionally, the plaintiff in Thomas requested certification of a collective class of delivery drivers at the franchisee defendants’ nine Papa John’s locations in one city, Cincinnati, Ohio. Thomas, 2019 WL 4743637, at *1. Here, Plaintiff requests certification of a collective class of delivery drivers at Defendants’ stores nationwide, specifically throughout various cities in Ohio, Kentucky, and Indiana. (Doc. 5 PageID 37). The facts of Thomas and this case are readily distinguishable such that the Magistrate Judge’s R&R does not directly contradict Thomas as Plaintiff repeatedly asserts. (Doc. 22). Finally, and in a similar vein, Plaintiff appears to suggest that there is some different, even more lenient, standard for motions to conditionally certify FLSA collective actions in pizza delivery driver cases in this District. (Id. PageID 239, 246, 248). The Court is aware of no such standard.

In sum, Plaintiff does not persuade the Court that any part of the R&R regarding the proper geographic scope of the class is clearly erroneous. See FED. R. CIV. P. 72(a). b. Statute of Limitations for Opt-In Plaintiffs The Magistrate Judge recommends that the statute of limitations for opt-in plaintiffs in this matter start to run from the date on which the undersigned issues an order authorizing notice i.e., adopting the R&R and granting conditional certification and authorizing notice. (Doc. 20 PageID 213-14). Plaintiff objects and argues that the statute of limitations for opt-in plaintiffs should begin to run from the date that he filed his Complaint. (Doc. 22 PageID 248-52). Plaintiff contends that if the Court adopts the recommendation then the Court will improperly exclude putative opt-in plaintiffs whose claims would expire between the date that he filed the Complaint and the date that the Court issues an order authorizing notice. Id. An action under the FLSA may be “commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful4 violation may be

The Magistrate Judge explained that the opt-in mechanism of the FLSA necessarily involves some lapse of time between the date on which a collective action is commenced and the date on which each opt-in plaintiff files his or her consent form and, despite this lapse, Congress chose not to automatically toll the statute of limitations from the date on which the collective action was filed. (Doc. 20 PageID 214 n.3) (citing Atkinson v. TeleTech Holdings, Inc., No. 3:14-CV-253, 2015 WL 853234, at *7 (S.D. Ohio Feb. 26, 2015)); Baden–Winterwood v. Life Time Fitness, 484 F. Supp. 2d 822, 826 (S.D. Ohio 2007); cf. Grayson v. K Mart Corp., 79 F.3d 1086, 1106 (11th Cir. 1996) (explaining that the FLSA statute of limitations demonstrates Congress’s “concern that an opt-in plaintiff should not be able to escape the statute of limitations bearing on his cause of action by claiming that the limitations period was tolled by the filing of the original complaint.”) (citation omitted). The Magistrate Judge also explained that “the weight of authority within the Southern District of Ohio indicates the class period should run from the date of an

Order granting conditional certification and not the filing of this lawsuit.” (Doc. 20 PageID 214).

The Court is not persuaded by Plaintiff’s reliance on Thomas, 2019 WL 4743637, as no party raised this issue and, as noted, that matter involved a two-year period in which the Court had to rule on two motions to dismiss and a motion to conditionally certify and authorize notice. Moreover, Plaintiff fails to address, or even acknowledge, the Magistrate Judge’s finding regarding the current weight of authority in the District. See (Doc. 22).

Plaintiff does not convince the Court that the Magistrate Judge’s recommendation is contrary to law such that the R&R should be modified or set aside. See FED. R. CIV. P. 72; (Doc. 20 PageID 266) (collecting cases in the Southern District of Ohio); see also De Angelis v. Nolan Enterprises, Inc., No. 2:17-CV-926, 2019 WL 6715975, at *5 n.1 (S.D. Ohio Dec. 10, 2019); Cowan v. Nationwide Mut. Ins. Co., No. 2:19-CV-1225, 2019 WL 4667497, at *8 (S.D. Ohio Sept. 25, 2019).

III. CONCLUSION In light of the foregoing, it is hereby ORDERED that Plaintiff's Objections (Doc. 22) are OVERRULED and the Magistrate Judge's R&R (Doc. 20) is ADOPTED in its entirety. Consistent with the Magistrate Judge’ recommendations, it is ORDERED that Plaintiff’s Motion to Conditionally Certify a FLSA Collective Action and to Authorize Notice (Doc. 5) is GRANTED in part to the extent the proposed putative class is limited to delivery drivers at the Akron, Ohio Team Pizza location where Plaintiff worked and DENIED in part to the extent it seeks to certify a conditional nationwide class, and Plaintiff shall file an amended notice consistent with the Court’s findings herein within fourteen (14) days of this Order.

IT IS SO ORDERED. _s/ Michael R. Barrett_____ Michael R. Barrett, Judge United States District Court